EXHIBIT 5
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement"), is made and entered into as
of February 28, 2000, by and among BHR North America, Inc., a Delaware
corporation ("Purchaser"), Bass PLC, a corporation organized under the laws of
England and Wales ("Parent"), and United/Xxxxxx Holdings, L.P., a Delaware
limited partnership (the "Stockholder").
RECITALS
A. Parent, Purchaser and Bristol Hotels & Resorts, a Delaware corporation
("BHR" or the "Company") have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which
Purchaser will merge with and into BHR (the "Merger") and each issued and
outstanding share of BHR Common Stock (each, a "BHR Common Share"), other than
BHR Common Shares held by Affiliates of Purchaser, will be converted into the
Merger Consideration upon the terms and subject to the conditions set forth in
the Merger Agreement.
B. As of the date hereof, the Stockholder owns of record 7,065,436 BHR
Common Shares (such BHR Common Shares, together with any other Purchaser Common
Shares or other voting securities or securities convertible into voting
securities of BHR acquired by the Stockholder from the date hereof (by purchase
or otherwise) through the Offer Completion Date in accordance with the terms of
this Agreement are collectively referred to herein as the Stockholder's "Subject
Shares").
C. As a condition and inducement to Parent's and Purchaser's willingness to
enter into the Merger Agreement, Parent has requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. TENDER OF SHARES. Not later than the fifth Business Day after
commencement of the Offer, the Stockholder will validly tender (or cause the
record owner of such shares to validly tender) and sell (and not withdraw)
pursuant to and in accordance with the terms of the Offer all of its Subject
Shares. In the event, notwithstanding the provisions of the preceding sentence
of this Section 1, any Subject Shares are for any reason withdrawn from the
Offer or are not purchased pursuant to the Offer, such Subject Shares will
remain subject to the terms of this Agreement during the Term. The Stockholder
acknowledges that Purchaser's obligation to accept for payment and pay for the
Subject Shares in the Offer is subject to all the terms and conditions of the
Offer. Notwithstanding any other provisions of this Agreement, the obligations
of the Stockholder under this Section 1 will terminate without further action
upon expiration of the Term.
2. AGREEMENT TO VOTE SHARES. During the Term, at any meeting of the
stockholders of BHR called to consider and vote upon the approval and adoption
of the Merger Agreement, the Merger, any actions related thereto or any Adverse
Proposal (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of the approval and adoption
of the Merger Agreement, the Merger, any actions related thereto or any Adverse
Proposal by written consent of the stockholders of BHR, the Stockholder will
vote or cause to be voted (including by written consent, if applicable) all of
the Stockholder's Subject Shares in favor of the approval and adoption of the
Merger Agreement and the Merger and against any Adverse Proposal. For purposes
of this Agreement, (a) the term "Term" means the period commencing on the date
hereof and ending as of the earliest of (i) the Effective Time, (ii) the
purchase by Purchaser of the Subject Shares pursuant to the Offer, and
(iii) the termination of the Merger Agreement in accordance with its terms, and
(b) the term "Adverse Proposal" means any (i) Company Takeover Proposal,
(ii) proposal by any Person other than Parent or Purchaser to
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change the composition of a majority of the Board of Directors of BHR,
(iii) reorganization, recapitalization, liquidation or winding up of the Company
or any other extraordinary transaction involving the Company, or (iv) corporate
action the consummation of which would frustrate the purposes, or prevent or
materially delay the consummation, of the transactions contemplated by the
Merger Agreement.
3. IRREVOCABLE PROXY. The Stockholder hereby irrevocably and unconditionally
revokes any and all previous proxies granted with respect to the Subject Shares.
By entering into this Agreement, the Stockholder hereby irrevocably and
unconditionally grants a proxy during the Term appointing Purchaser as
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in the Stockholder's name, to vote, express consent or dissent or otherwise
to utilize such voting power in the manner contemplated by Section 2 above as
Purchaser or its proxy or substitute shall, in Purchaser's sole discretion, deem
proper with respect to the Subject Shares. The proxy granted by the Stockholder
pursuant to this Section 3 is irrevocable during the Term and is granted in
consideration of Parent and Purchaser entering into the Merger Agreement and
incurring certain related fees and expenses. The Stockholder shall perform such
further acts and execute such further documents as may be required to vest in
Purchaser the sole power to vote the Subject Shares during the term of the proxy
granted herein.
4. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDER. The
Stockholder represents, warrants and covenants to Parent as follows:
(a) OWNERSHIP. The Stockholder is the sole record and beneficial owner of
the number of the 7,065,436 BHR Common Shares free and clear of any Lien and any
other limitation or restrictions (including any restriction on the right to vote
or otherwise dispose of the Subject Shares, other that those created hereby or
by the BHR Stockholder Agreement), and has full and unrestricted power to vote
such shares. The Stockholder does not own any securities of BHR on the date of
this Agreement other than the 7,065,436 BHR Common Shares. None of the Subject
Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of the Subject Shares. From the date of this Agreement to
the Offer Completion Date, the Stockholder will be the sole record and
beneficial owner of the 7,065,436 of BHR Common Shares owned by it and will have
full and unrestricted power to vote such shares.
(b) DUE AUTHORIZATION. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Stockholder.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general principles of
equity.
(c) NO CONFLICTS. The execution, delivery and performance of this Agreement
by the Stockholder do not, and the consummation of the transactions contemplated
by this Agreement and compliance with the provisions of this Agreement will not,
conflict with, result in a breach or violation of or default (with or without
notice or lapse of time or both) under, or give rise to a material obligation, a
right of termination, cancellation or acceleration of any obligation or a loss
of a material benefit under, require notice to or the consent of any Person
under any agreement, instrument, undertaking, law, rule, regulation, judgment,
order, injunction, decree, determination or award binding on the Stockholder, or
result in the creation of any Lien on the Subject Shares, other than any such
conflicts, breaches, violations, defaults, rights, losses or Liens that,
individually or in the aggregate, would not (a) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(b) prevent or delay the consummation of any of the transactions contemplated by
this Agreement.
(d) RELIANCE BY PARENT. The Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
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(e) NON-INTERFERENCE. The Stockholder will not (i) grant any proxies or
powers of attorney with respect to any of the Stockholder's Subject Shares,
(ii) deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to the Stockholder's Subject Shares,
(iii) voluntarily take any action that would make any representation or warranty
contained herein untrue or incorrect or have the effect of preventing the
Stockholder from performing its obligations under this Agreement, or (iv) sell,
assign, transfer, encumber, mortgage, or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance, mortgage or other
disposition of, any Subject Shares or any options, warrants or other rights to
acquire BHR Common Shares or other voting securities of BHR during the Term. The
Stockholder shall not seek or solicit any such sale, assignment, transfer,
encumbrance, mortgage, or other disposition or any such contract, option or
other arrangement or understanding, and agrees to notify Parent promptly if the
Stockholder is approached or solicited, directly or indirectly, by any Person
with respect to any of the foregoing and to provide to Parent in reasonable
detail the material terms of any proposal received by the Stockholder.
(f) SURVIVAL. The Stockholder's representations and warranties set forth in
this Section 4 will survive the Effective Time for one year after the date of
this Agreement.
5. INDEMNIFICATION. Regardless of whether the transactions contemplated by
the Merger Agreement are consummated, during and after the Term, Parent will
indemnify, defend and hold harmless the Stockholder to the fullest extent
permitted by law against any and all judgments, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection therewith) and all expenses (including without
limitation reasonable attorneys' fees), costs and obligations paid or incurred
(a "Loss") in connection with investigating, defending, participating in or
preparing to defend any Claim; provided, that Parent shall not be obligated to
indemnify the Stockholder under this Section for any claim, liability or expense
arising from (i) the bad faith or gross negligence of the Stockholder, (ii) a
breach by the Stockholder of any representation, warranty, covenant or agreement
contained in this Stockholder Agreement, or (iii) the breach by such Stockholder
of the Securities Act of 1933, the Securities Exchange Act of 1934 or any rules
or regulations promulgated thereunder. The Stockholder agrees to notify
Purchaser promptly after the receipt by the Stockholder of written notice of any
such suit, action or proceeding, or any threat thereof, and Parent shall be
entitled to assume the defense thereof at its own expense and through counsel
selected by it. For purposes of this Agreement, "Claim" means any threatened or
pending action, suit or proceeding brought by or on behalf of a stockholder of
the Company (including any derivative action brought by any such stockholder on
behalf of the Company), alleging damage by reason of the Stockholder having
entered into this Agreement. Notwithstanding any other provision hereof, the
termination of this Agreement or the Merger Agreement or the expiration of the
Term will not limit, extinguish or otherwise affect Parent's obligations under
this Section 5.
6. NO SOLICITATION. The Stockholder covenants and agrees that it will not
directly or indirectly (i) solicit, initiate or take action that could
reasonably be expected to encourage (or authorize any Person to solicit,
initiate or take any action that could reasonably be expected to encourage) any
the Company Takeover Proposal or (ii) participate in any discussion or
negotiation regarding, or furnish to any other Person any information with
respect to, or otherwise cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other Person to do so or
seek any of the foregoing. The Stockholder shall promptly advise Purchaser of
the material terms of any communications it may receive relating to any of the
foregoing.
7. MISCELLANEOUS.
(a) FEES AND EXPENSES. Each party hereto will pay its own expenses incident
to preparing for, entering into and carrying out this Agreement and the
performance of its obligations hereunder.
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(b) AMENDMENT. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
(c) EXTENSION; WAIVER. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for any performance
hereunder, will be valid against the other parties only if set forth in an
instrument in writing signed on behalf of each such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise will not constitute a waiver of such rights.
(d) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement and the
Merger Agreement constitute the entire agreement, and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement, and is not intended to confer
upon any Person other than the parties any rights or remedies.
(e) GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable conflict of laws principles thereof.
(f) NOTICES. All notices, requests, claims, demands and other communications
under this Agreement must be in writing and will be deemed given if delivered
personally, or sent by overnight courier (providing proof of delivery), in the
case of the Stockholder, to the address set forth on the signature page hereto
or, in the case of Parent or Purchaser, to the address set forth below (or, in
each case, at such other address as shall be specified by like notice).
If to Parent or Purchaser, to:
c/o Bass Hotels & Resorts
Three Ravinia Drive
Suite 2900
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
(g) ASSIGNMENT. Neither this Agreement nor any of the rights, interest or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise, by the Stockholder without the prior
written consent of Parent, and any such assignment or delegation that is not
consented to will be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
(h) ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached, and that such
breach would cause the other parties hereto to sustain damages for which they
would not have an adequate remedy at law for money damages. It is accordingly
agreed that each party will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Delaware or in any Delaware state court, this being in addition to any
other remedy to which it is entitled at law or in equity. In addition, each of
the parties hereto (a) consents to submit itself to the personal jurisdiction of
any federal court located in the State of Delaware or in any Delaware state
court in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this
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Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court.
All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity will be cumulative and not
alternative, and the exercise of any thereof by any party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
(i) EXCLUSIVE REMEDY. If the Stockholder fails to perform any covenant to be
performed by it under this Agreement, and if, pursuant to Section 7.5 of the
Merger Agreement, the Company Termination Fee is paid to Parent by BHR, such
Company Termination Fee will constitute liquidated damages and will be Parent's
sole and exclusive remedy for any breach by the Stockholder of any of its
representations, warranties or covenants under this Agreement.
(j) SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provisions will be interpreted
to be only so broad as is enforceable.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
(n) DEFINED TERMS. Capitalized terms used herein that are not otherwise
defined herein have the meanings set forth in the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed as of the day and year first written above.
BASS PLC
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx
ATTORNEY-IN-FACT
BHR NORTH AMERICA, INC.
By: /s/ XXXXXX XXXXX
-----------------------------------------
Xxxxxx Xxxxx
PRESIDENT
UNITED/XXXXXX HOLDINGS, L.P.
By: Hampstead Genpar, L.P.
Its General Partner
By: HH Genpar Partners
Its General Partner
By: Hampstead Associates, Inc.
Its Managing General Partner
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Xxxxxx X. Xxxxxx
EXECUTIVE VICE PRESIDENT
Address: United/Xxxxxx Holdings, L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxx XxXxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
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